The European Court of Justice in its judgment from 3 April 2019 (case C‑617/17) rules that the principle of ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC. In such a situation, the national competition authority must nevertheless ensure that the fines are proportionate to the nature of the infringement.
In 2007 the President of the Office of Competition and Consumer Protection (UOKiK) found that, from 1 April 2001 until the date on which that decision was adopted, PZU Życie had abused its dominant position in the market for group life insurance for employees in Poland and infringed Polish competition law. The Office also found that conduct which amounted to abuse could have a negative effect on the opportunities for foreign insurers to enter the Polish market which, in turn, could adversely affect trade between the Member States. The UOKiK therefore considered that PZU Życie had infringed Article 82 EC as well as national law. The company was fined: PLN 33m on the basis of infringement of national competition law and PLN 17m on the basis of infringement of Article 82 EC.
PZU Życie brought an appeal on a point of law before the Polish Supreme Court on the basis of an infringement of the principle of ne bis in idem enshrined in Article 50 of the Charter and in Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). The appellant in the main proceedings claims that it was fined twice for an infringement of EU law, namely, first, directly, on the basis of Article 82 EC, read in conjunction with Article 5 of Regulation No 1/2003 and, a second time, indirectly, on the basis of national competition law.
The Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
- Can Article 50 of the [Charter] be interpreted as meaning that the application of the ne bis in idem principle presupposes not only that the offender and the facts are the same but also that the legal interest protected is the same?
- Is Article 3 of Regulation [No 1/2003], read in conjunction with Article 50 of the [Charter], to be interpreted as meaning that the rules of EU competition law and of national competition law which are applied in parallel by the competition authority of a Member State protect the same legal interest?
The Court held that the ne bis in idem principle must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged.
The Court ruled that in the light of the foregoing, the answer to the questions referred is that the principle of ne bis in idem enshrined in Article 50 of the Charter must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC. In such a situation, the national competition authority must nevertheless ensure that the fines are proportionate to the nature of the infringement.
